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Shariah Perspective on Marriage Contract and Practice in Contemporary Muslim Societies

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Shariah Perspective on Marriage Contract and Practice in Contemporary Muslim Societies International Journal of Social Science and Humanity, Vol. 3, No. 3, May 2013 Shariah Perspective on Marriage Contract and Practice in Contemporary Muslim Societies Shamreeza Riaz both worldly affair (mu‟amlh) and an act of worship (ibadah) Abstract—Forced marriages are worldwide phenomena and at the same time. also exist in Pakistani society. It involves the lack of free and These objectives of marriage contract cannot be achieved full consent of at least one of the parties to a marriage. Mostly, by forcing a woman to enter into marriage contract as females are victims of forced marriages. It is prevalent in the Badlh-e-Sulh 1 ; Sawara 2 and Wanni 3 ;such practices are name of religion in many Muslim countries; however, it is purely a traditional and cultural phenomenon which has against the Islamic provisions and rights granted by the nothing to do with religion. Forced marriages are different Constitution of Pakistan. These are based on cultural and from arranged marriages in which both parties freely consent traditional norms. to enter into marriage contract and they have no objection on The right to marry with free and full consent is clearly the choice of partner selected by their parents. This study will given by Islam and incorporated in national laws of the highlights different forms of forced marriages in Pakistani country. Moreover, it is established under international society. human rights law in many conventions such as Universal Index Terms—Child marriage, elements of marriage Declaration of Human Rights. However, in many Muslim contract in islam, forced marriage, honor killings, marriage in states, it is crushed by customary and traditional practices shariah. practiced by many families. It shows the lack of religious knowledge, ineffectiveness of the law and inappropriate policies and procedures adopted by a state. I. INTRODUCTION In order to know the perspective of society on forced New millennium is considered as the millennium of marriages, I have examined few reported cases. Study of upholding the Human Rights throughout the world. Women the reported cases reveals that forced marriage is not even are considered as most vulnerable human beings of the considered a crime in many areas as it is commonly society due to violation of their basic and fundamental rights. practiced in the name of religion. Many Muslim families Women rights gained so much importance and many think that Allah has given this right to parents to choose a organizations are working to provide them equal status in life partner for their daughter. Moreover, they think that the society and to stop violence against them. Moreover, in parents have been given all rights to decide any matter for every society gender equality is considered a powerful tool their children. Many forced marriages are prevalent in the for empowering women, but in some states, this powerful form of Badl-e-sulah, Sawara and Wanni and some girls are tool is challenged by cultural and traditional norms. These forced to enter into marriage contract on gunshot. Forced norms sometimes become hurdle to provide women‟s basic marriage of dual nationals by their parents is a contemporary rights and Pakistan is among those states. This work will issue which is debatable and need to be discussed here. highlight the existing practice of forced marriages in the Some Pakistani families have dual nationalities and they contemporary societies which violates fundamental rights of bring their children back to Pakistan on holidays and force women. their daughters to get married in Pakistan to save the honor Marriage and family institution occupies a very pivotal of their family. Such families are concerned about security position in the legal system of Islam [1]. It can be judged of their children abroad and force them to get married in from the fact that Muslim jurists regarded the protection of Pakistan at early age. Due to fear and insecurity of parents, marriage among the five fundamental objectives of Shariah. the ratio of forced marriages among dual nationals is The Qur’an describes marriage as mithaqanghaliza. The increasing day by day. Such marriages are based on cultural phrase mithaqanghaliza implies that marriage is sacred and tradition but supported and linked with religion. Many sanctified contract, which is higher in status than ordinary objections from the West are raised on the legality of such civil contracts. Marriage in Islam is essentially a righteous marriages. Whereas, parents think that Islam has given them act and an act of devotion (‘ibadah’) [2]. Moreover, the right to decide future of their children and they can force marriage is necessarily a civil contract; it has gained the their children to get married under this right. It is therefore same status as other contracts in society. However, it is not necessary to see Shariah perspective on forced marriages. only a civil contract but also a sacred covenant (mithaq), which is having the sanctity of Shariah and pleasure of God. However, Muslim Jurists regard nikah or marriage to be 1Badla-e-Sulh means giving a female in marriage contract or otherwise compelling her for marriage as a reconciliation of a family dispute. 2Sawar is a Pashto word denoting a child marriage custom in tribal areas Manuscript received February 22, 2013; revised May 7, 2013. of Pakistan and Afghanistan. This custom is tied to blood feuds among the Shamreeza Riaz is with the Department of Law, and Faculty of Shariah different tribes and clans where the young girls are forcibly married to the & Law, International Islamic University, Islamabad, Pakistan (e-mail: members of different clans in order to resolve the feuds. [email protected]). 3Wanni is a child marriage custom in tribal areas of Pakistan. DOI: 10.7763/IJSSH.2013.V3.241 263 International Journal of Social Science and Humanity, Vol. 3, No. 3, May 2013 II. SHARIAH PERSPECTIVE ON MARRIAGE CONTRACT same status as other contracts. However, it is not only a civil Before Islam, women were treated as a „commodity‟ that contract but also a sacred covenant (mithaq), which is closely resembled a sale through which a woman became having the sanctity of Shariahand pleasure of God. the property of her husband. Woman was given in marriage Dr. MuhammedMunir described sanctity of marriage contract without her consent as a sale commodity. In ancient contract in following words: Arabia, a woman was subjected by males -her father, brother Allah has created deepest love and solace among the or close male relatives- when she was a virgin and her married men and women for each other. The word dwell husband when she became a wife. A female had no voice in in tranquility with them (as mentioned in Qur’ānic verse her marriage (in its initiation or its termination). Islam 30:21) connotes companionship and mutual love, which brought a shift in the basis of social foundation from blood is distinct from mere sexual pleasure. Thus a wife in kinship to fellowship in a community of believers Islam is not handmaiden, but a lifelong companion of her [3].Classical family law as finally formulated was the husband, his consort [9]. product of Qur’ānic reform and customary practice. Islam This deepest love and solace cannot be achieved from a discouraged all existing practices and provided equal rights forced marriage contract whose purpose is to resolve any to women. dispute where a girl is considered as a compensation of The Holy Prophet (P.B.U.H) has emphasized on marriage crime which she has not committed. For a valid marriage in a large number of ahadith. Prophet (P.B.U.H) said on one contract, consent of contracting parties is an essential occasion, “[m]arriage is my Sunnah4, whoever turns away element and without consent, it is considered irregular/fasid from my Sunnah, does not belong to me” [4]. This Hadith contract. However, marriage without consent is not only highlights the importance of marriage contract. An prevalent in rural but also in urban areas of Pakistan. important purpose of marriage is to attain psychological, Sometimes, if victim refused to enter into marriage contract emotional and spiritual companionship [5]. This cannot be without consent, her father, brother or other relatives killed gained from forced marriage contract. Marriage helps men her to preserve their honor. The Shalimar police reported on and women to lead a life of chastity; it secures them against 8 May 2011 that Muhammad Asghar, resident of Lahore, immoral sexual indulgence and develops smooth gunned down his 22-year-old daughter Gull Afshan relationship among a couple. However, in anti-women allegedly to preserve his honor when she rejected arranged practices, women are given as blood money or marriage [10]. compensation against a murder or dispute. She is insulted and taunted by her in laws. In such cases, it is impossible to achieve the basic purpose of marriage contract i.e., peace IV. ESSENTIAL ELEMENTS OF MARRIAGE CONTRACT IN and harmony. SHARIAH The Qur’ān calls marriage a his meaning“a castle” as it is Most of the families think that consent of the girl is not protection against dishonesty and immodesty. It has necessary for a marriage contract. They think it is the frequently used the word muhsin 5 and muhsanat 6 which responsibility of parents to choose life partner for her. To come from the root word hisn i.e. castle and fort [6]. clarify this view of Muslim families, there is a need to Marriage safeguards and protects chastity in the same way highlight main elements of marriage contract in Islam. as fort protects the garrison within from a besieging army There are different views of Muslim jurists on the [7]. These objectives of marriage can be achieved when the essential elements of marriage contract.
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